United States District Court, S.D. California
KHRISTIE REED .PAUL BENESCH, REBECCA BRANDEL, DIANE CANUTT, ROD CANUTT, CRYSTAL LEWIS, RENE LUCHT, DIANE ORTMAN, DEBRA PORWOLL and KRIS VOSBURGH on Behalf of Herself and All Others Similarly Situated, Plaintiff,
DYNAMIC PET PRODUCTS; and FRICK'S MEAT PRODUCTS, INC., Defendant.
WILLIAM Q. HAYES United States District Judge.
matter before the Court is the motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) (ECF No. 40) filed
by Defendants Dynamic Pet Products and Frick's Meat
1, 2015, Plaintiff Khristie Reed commenced this action on
behalf of herself and others similarly situated by filing the
Class Action Complaint in this Court. (ECF No. 1). On June
16, 2015, Defendants Dynamic Pet Products
("Dynamic") and Frick's Meat Products, Inc.
("Frick's") filed a motion to dismiss and a
motion to strike. (ECF Nos. 8, 9). On July 30, 2015, the
Court granted Defendants' motion in part and denied it in
part. (ECF No. 18).
January 15, 2016, Plaintiffs filed a first amended complaint.
On January 26, 2016, Plaintiffs filed a second amended
complaint ("SAC"), which is the operative
complaint. (ECF No. 37). Plaintiffs plead causes of action
for: (1) fraud; (2) negligent misrepresentation; (3)
violation of the California Consumers Legal Remedies Act
("CLRA"), California Civil Code section 1750,
et seq.; (4) violation of California Business and
Professions Code section 17200, et seq.
("UCL"); (5) breach of implied warranty; (6)
violation of the Florida Deceptive and Unfair Trade Practices
Act, Florida Statute § 501.201, et seq.; (7)
Violation of the Illinois Consumer Fraud and Deceptive
Business Practices Act, 815 ILCS 505/1, et seq.; (8)
violation of the Louisiana Unfair Trade Practices and
Consumer Protection Law, Louisiana Revised Statute §
51:1401, et seq.; (9) violation of the Minnesota
Consumer Protection Act, Minnesota Statute §§
325F.67 et seq.; (10) violation of the New York
Consumer Protection from Deceptive Practices Act, New York
General Business Law § 349, et seq.; (11)
violation of the North Carolina Consumer Protection Act,
North Carolina General Statute § 75-1.1, et
seq.; (12) violation of the Oregon Unlawful Trade
Practices Act, Oregon Revised Statute § § 646.60 5
et seq.; and (13) violation of the Washington
Consumer Protection Act, Washington Revised Code §§
19.86.010, et seq. Plaintiffs request general
damages, punitive damages, restitution, disgorgement,
equitable relief, and attorneys' fees and costs.
February 9, 2016, Defendants filed the motion to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF
No. 40). On February 29, 2016, Plaintiffs filed a response in
opposition. (ECF No. 43). On March 7, 2016, Defendants filed
a reply. (ECF No. 44).
Allegations of the Complaint
This is a consumer protection class action arising out of
misrepresentations and omissions made by Defendants Dynamic
Pet Products, LLC and Frick's Meat Products, Inc.
regarding the Real Ham Bone For Dogs. Frick's is a meat
product manufacturer. In an effort to profit from the waste
produced by slaughterhouses and meat manufacturers,
Frick's or its principals created Dynamic to sell waste
ham bones to pet owners. Through Dynamic, a wholly owned
subsidiary of Frick' s, Defendants manufacture, market
and sell the Real Ham Bone For Dogs as an appropriate and
safe chew toy for dogs. Indeed, on each product label and as
the name suggests, Defendants explicitly market the Dynamic
Real Ham Bone For Dogs as a chew toy for dogs.
(ECF No. 37 ¶1). "To profit from the waste
resulting from the manufacture of its products, Frick's,
or its principals, created Dynamic to sell waste pig bones to
pet owners, marketing them as appropriate and safe for
dogs." Id. ¶ 22. Defendants Frick's
Meat Products, Inc. and Dynamic Pet Products are Missouri
Corporations. Id. ¶¶19, 20. "Dynamic
and Frick's are the alter egos of one another and operate
as a single business enterprise for the production, marketing
and sale of the Real Ham Bone For Dogs." Id.
¶21. "Dynamic and Frick's share the same
ownership, management and headquarters." Id.
"Frick's and Dynamic work in concert with each other
to profit from the sale of waste ham bones by marketing them
to pet owners as safe and appropriate chew toys for dogs,
when they are not." Id.
Real Ham Bone For Dogs is not a safe or appropriate chew toy
for dogs, and is not fit for its intended purpose, despite
Defendants' contrary representations." Id.
¶2. "The Real Ham Bone For Dogs is an 8"
hickory-smoked pig femur, which when chewed is prone to
splintering into shards. When swallowed, these shards slice
through dogs' digestive systems and cause severe internal
injuries. Thousands of dogs have suffered a terrible array of
illnesses, including stomach, intestinal and rectal bleeding,
vomiting, diarrhea, constipation and seizures, and have died
gruesome, bloody deaths as a result of chewing
Defendants' Real Ham Bone For Dogs." Id.
Complaint alleges that the Food and Drug Administration
stated that bones such as the Real Ham Bone For Dogs are not
safe for dogs. The Complaint alleges that the Missouri Better
Business Bureau "issued a warning to Defendants about
the dangers posed by their Real Ham Bone For Dogs
product" but "Defendants ignored this notice."
Id. at 52. The Complaint quotes fifteen complaints
made by pet owners online or to Dynamic directly. For
example, the Complaint alleges that one pet owner complained
that her dog suffered "shock and couldn't move . . .
puked and had Diarrhea and couldn't stand up ... [and]
spent 3 days in the hospital on iv's [sic]" as a
result of ingesting the Real Ham Bone for Dogs. Id.
having knowledge that Real Ham Bones For Dogs is inherently
dangerous for dogs, Defendants represent the opposite."
Id. ¶ 57. "None of the instructions on the
product's packaging or in other marketing informed
Plaintiffs or other consumers that allowing dogs to chew on
the Real Ham Bone For Dogs as instructed on the labeling
would pose a significant risk of serious illness or
death." Id. ¶ 58. "Nowhere do
Defendants state the truth - that the Real Ham Bone For Dogs
is a dangerous product that should not be given to
dogs." Id. The Complaint alleges that the label
of each Real Ham Bone For Dogs misrepresents that it is
"safe for your pet" and is "meant to be
chewed." Id. ¶ 5.
Complaint alleges that Plaintiff Khristie Reed purchased the
Real Ham Bone For Dogs from Wal-Mart in Oceanside,
California, on March 1, 2015.
When Plaintiff returned home from Wal-Mart, she gave the Real
Ham Bone For Dogs to Fred, her healthy nine-year-old basset
hound. Plaintiff watched Fred chew on the Real Ham Bone For
Dogs for approximately one hour, after which point Fred
walked away and did not chew on it again. The next day,
Monday March 2. 2015. Fred was lethargic and vomiting blood.
Plaintiff immediately rushed Fred to California Veterinary
Specialists in Carlsbad, California. The veterinarian told
Plaintiff that Fred was gravely ill and there was no
guarantee that surgery would save him. According to the
veterinarian, the only way to alleviate Fred's suffering
was to put him to sleep. Plaintiff took the
veterinarian's advice and Fred was euthanized that
Complaint defines the proposed class as "[a]ll persons
who purchased one or more Real Ham Bone For Dogs other than
for purpose of resale." Id.¶ 61. Attached
to the Complaint as Exhibit A is a May 1, 2015 letter from
Plaintiffs' counsel to David S. Frick, owner of Dynamic
Pet Products, requesting that "Defendants immediately
correct and rectify these violations by ceasing dissemination
of false and misleading information as described in the
enclosed Complaint...." (ECF No. 37-1 at 3).
contend the Court should dismiss: (1) Plaintiffs' implied
warranty claim on the ground that there is no vertical
privity between Plaintiff and Defendants; (2) Plaintiff
Benesch's Louisiana consumer protection claim because the
Louisiana consumer protection statute prohibits class action
claims; (3) all of Plaintiffs' claims relating to the
risk of splintering because the product label contained an
express waiver of liability and assumption of risk that the
bone would splinter; (4) Plaintiffs' misrepresentation
claims based on Dynamic's website and other "unnamed
marketing" because the allegations are vague and
conclusory; (5) Plaintiff Brandel's Florida consumer
protection claims because Brandel cannot establish causation
for her claim and the Florida statute excludes claims for
damage to property; (6) Plaintiff Rodney Cannut's claim
because he did not read the label or purchase the bone; and
(7) Plaintiffs' SAC because it fails to identify which
remedies are sought under each separate cause of action.
oppose the motion to dismiss and requests leave to amend
should Defendants' motion be granted in any respect.
Rule of Civil Procedure 12(b)(6) permits dismissal for
"failure to state a claim upon which relief can be
granted." Fed.R.Civ.P. 12(b)(6). Federal Rule of Civil
Procedure 8(a) provides that "[a] pleading that states a
claim for relief must contain... a short and plain statement
of the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). "A district
court's dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6) is proper if there
is a 'lack of a cognizable legal theory or the absence of
sufficient facts alleged under a cognizable legal
theory.'" Conservation Force v. Salazar,
646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri
v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir.
plaintiff s obligation to provide the 'grounds' of
his 'entitle[ment] to relief requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do." Bell Atl Corp. v.
Twombly,550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P.
8(a)). "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face.'" Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (citation
omitted). "[T]he tenet that a court must accept as true
all of the allegations contained in a complaint is
inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice." Id. (citation
omitted). "When there are well-pleaded factual
allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement
to relief." Id. at 679. "In sum, for a
complaint to survive a ...